CDPA 1988 s.119 – Reference of licensing scheme to tribunal

(1)If while a licensing scheme is in operation a dispute arises between the operator of the scheme and—

(a)a person claiming that he requires a licence in a case of a description to which the scheme applies, or

(b)an organisation claiming to be representative of such persons,

that person or organisation may refer the scheme to the Copyright Tribunal in so far as it relates to cases of that description.

(2)A scheme which has been referred to the Tribunal under this section shall remain in operation until proceedings on the reference are concluded.

(3)The Tribunal shall consider the matter in dispute and make such order, either confirming or varying the scheme so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.

(4)The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

Definitions used in section 119 3

licensing scheme

(1) In this Part a “licensing scheme” means a scheme setting out—

(a)the classes of case in which the operator of the scheme, or the person on whose behalf he acts, is willing to grant copyright licences, and

(b)the terms on which licences would be granted in those classes of case;

Defined in s.116(1) · see it in the full Act

and in those paragraphs “licensing scheme” means a licensing scheme of any of those descriptions.

Defined in Sch.2A para.2 · see it in the full Act

scheme

and for this purpose a “scheme” includes anything in the nature of a scheme, whether described as a scheme or as a tariff or by any other name.

Defined in s.116(1) · see it in the full Act

made

(2)Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.

Defined in s.3(2) · see it in the full Act

Cases considering section 119 4

Phonographic Performance Ltd v Raine

[2014] EWHC 1398 (Ch) · 5 March 2014

The judgment referred to section 119 as an example of the Copyright Tribunal’s jurisdiction to confirm or vary licensing schemes. The provision formed part of the statutory context for the Tribunal applications. (see para [17])

The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors

[2010] EWHC 3099 (Ch) · 26 November 2010

Permits a potential licensee to refer licensing-scheme terms to the Copyright Tribunal for determination of reasonableness. The judgment does not finally construe the scheme’s terms. (see paras [11]-[16]) Was relied on in argument concerning whether the licensing scheme remained operative during the Tribunal reference. The court did not decide that issue. (see para [47])

Phonographic Performance Ltd & Anor, Re Appeal of a Copyright Tribunal Decision

[2008] EWHC 2715 (Ch) · 21 November 2008

The provision is considered as part of the statutory mechanism governing references of schemes already in operation. Its interaction with section 128A supports the conclusion that a notified scheme should proceed through the relevant procedure as a whole. (see para [26])

1 more judgment, and what each says about section 119, are in the case-law panel in the full Act.